Could the WTO overturn EU health claim laws?

Aggrieved companies and trade groups have already mounted legal actions against the EU’s strict health claim laws – they are in process – but the regulation’s workings could face fresh challenge from governments signed up to the World Trade Organization (WTO), according to a Brussels-based legal expert.

Emmanuel Saurat, an associate in the Brussels office of Sidley Austin, told a conference in the EU capital last week that the European Union’s nutrition and health claims regulation (NHCR) was at odds with WTO free trade principles.

According to those principles and agreements, the NHCR may restrict commercial free speech, trade between EU and non-EU countries as well as the use of trade marks.

Speaking to us after his presentation, Saurat spoke of NHCR prohibitions that may provoke actions by the governments that have signed up to the WTO.

“The WTO has a specific agreement on technical barriers to trade and this agreement basically prohibits labelling measures which have a discriminatory impact on imports from third countries.​

“The EU health claims regulation is clearly a technical regulation which falls within the scope of that agreement and so with any decision which accepts or rejects an individual health claim; and that’s why the WTO is relevant to the health claims regulation.”​

Speaking of botanicals, for the moment on hold under the NHCR as scientific criteria is debated among EU member states, Saurat highlighted the impact on those countries that are often the raw material providers.

“Decisions on health claims can have a disproportionate impact on these countries…that’s where potentially you might be able to bring claims of discrimination.”​

But he affirmed that under the WTO remits, only governments, not individual parties, can mount actions.

159 governments are signatories to the WTO. Its website states the organisation is, “Essentially…a place where member governments try to sort out the trade problems they face with each other.”​